1. ' MUNAWAR AHMAD MIRZA, C J.--This appeal is directed against judgment and decree dated 10-11- 1992 passed by learned Special Court under Banking Companies (Recovery of Loans) Ordinance, 1979.
2. Relevant facts leading to present appeal are that on 31st August, 1990 respondent-Bank filed a suit for recovery of Rs,71,66,840.50 alongwith future interest. It was alleged that appellants 2 to 5 were running partnership business in the name and style of Malik Gul Hassan & Company Engineers and Contractors, Quetta. All the partners through Special Power of Attorneyuthorised appellant No,2 namely Malik Mir Hassan to open account in the name of Firm (appellant No,1).
2. Accordingly a Current Account No,8923 was opened with M.A. Jinnah Road, Branch of Habib Bank Ltd. In the name and style of Malik Gul Hassan & Company. At the request of appellants 2 to 5 respondent-Bank allowed financial accommodation in the aforementioned account by sanctioning overdraft limit, which was enhanced from time to time against hypothecation of stock and construction material. To further secure repayment documents in the nature of (i) D.P. Note, (ii) letter of arrangement, (iii) letter of authority, (iv) letter of continuity, (v) letter of undertaking, (vi) letter of hypothecation of stock etc. Were executed before availing benefit of overdraft facility.
3. Besides appellant No,2 has executed letter of guarantee holding himself responsible for the amount due in the account of appellant No, 1 . Equitable Mortgage by depositing title deed was also drawn in respect of property situated in Garden East, Karachi for ensuring repayment. It is the case of respondent-Bank that appellant failed to deposit amounts obtained by appellant No,2 from the account of appellant No,1 and sum of Rs,71,66,800 became outstanding against them till 31st of December, 1989. Eventually after legal notice and demands suit was filed and following reliefs were claimed:--- "It is therefore, respectfully prayed that decree be passed in favour of the plaintiff against the defendants jointly and severally in the following terms:---
(a) For sum of Rs,71,66,840.50 by attachment and sale of mortgaged property Bungalow No,230/2 measuring 1156.50 sq. Yards situated Sapphire Street, Garden East, Karachi.
(b) Interest at the rate of 14% per annum with quarterly rests from 11-1-1990 till the date of decree.
(c) Interest at the rate of 14% per annum with quarterly rests from the date of decree till the realisation of decretal amount.
(d) Costs of the suit.
(e) Any other relief which this Honourable Court deems fit and proper in the circumstances of the case."
4. ' In response to notice issued by the Court attorney of appellant No,2 appeared and submitted an application explaining difficulties whereby proper defence could not be put up. On 24th June 1990 another application under Order 37, Rule 3, C.P.C. Was submitted by appellant No,2 as Managing Partner of appellant No,1 (Malik Gul Hassan & Company) through attorney, wherein several legal objections including bar of limitation were raised. The rate of interest was challenged on the ground of being excessive.
3. It may be seen that on the failure of appellants 2 to 6 to appear before trial Court ex parte decree was passed against them on 15-8-1990. Appellants 1 and 2 however submitted an application No,799/90 on 12-9-1990 for suspending and setting aside decree passed against appellants 2 to 6.
5. Said application was resisted and detailed reply was filed on 17-9-1990. Appellant No,3 subsequently on 22-9-1990 moved an application under Order 37, Rule 4, C.P.C. Praying for setting aside ex parte decree and seeking permission to put up defence, which was also vehemently opposed by the Bank. The above-referred applications were ultimately decided by the learned trial Court vide order dad 5-7-1992 whereby Applications Nos.799, 850 and 851 of 1992 regarding setting aside of the ex parte decree against appellants Nos.2 to 6 and permission for granting right of defence to appellant No, 3 were declined. But appellants 1 and 2 were permitted to file written statement and put up defence subject to furnishing Bank guarantee within 30 days. Appellant No,2 on 1-8-1992 submitted Application No,858/92 praying for converting Bank guarantee into security by moderately reducing the amount which was refused.
6. ' In the meantime another development took place whereby through Fax message dated 6-7-1992 Bank of Liechtenstein remitted amount to Habib Bank wherein appellant No,2 (Malik Mir Hassan) was shown as beneficiary. The amount was forwarded by Habib Bank, Karachi to M.A. Jinnah Road, Branch Quetta. The respondent-Bank by deducting the claim in suit despatched balance amount to Grindlays Bank vide letter dated 22-7-1992 which however, was returned as beneficiary had no account with the Bank at relevant time. It appears that subsequently Bank of Liechtenstein through Fax message dated 22-7-1992 changed the name of beneficiary from Malik Mir Hassan to that of Bibi Zainab. This message was attested and verified by the officials at Habib Bank, Karachi on 25th July, 1992 as reflected from documents attached with the file. The respondent-Bank submitted an Application No,928 under section 94 read with section 151, C.P.C. On 10-8-1992 praying for attachment of amount which had been kept under lien by the respondent-Bank. The application was opposed' by appellants Nos.1 and 2 and detailed facts were mentioned in rejoinder dated 11-8- 1992. Learned trial Court passed interim order of attachment on the same day viz. 11-8-1992.
7. ' It is important feature of the case that neither Bank of Liechtenstein nor Mst. Zainab has ever approached the Court for showing any grievance. Only appellant No,2 has protested against said adjustment of money by respondent-Bank. Since appellants Nos.1 and 2 were unable to furnish Bank guarantee, therefore, on expiry of thirty days they lost right of defence. Learned trial Court considering available material decreed the suit vide judgment dated 10-11-1992. Feeling dissatisfied from the same, present appeal was filed on 19-12-1992.
8. ' Mr. Basharatullah learned counsel for appellant strenuously contended that Banking Companies (Recovery of Loans) Ordinance, 1979 was amended on Ist of August, 1992 by Act XVII of 1992 PLD 1992 Central Statutes 259 Whereby learned trial Court ceased to have pecuniary jurisdiction for adjudicating upon the matter. Reliance is placed on the observations of reported judgment from Lahore High Court (1993 CLC 155). It was emphatically urged that learned trial Judge exceeded its jurisdiction by imposing condition of furnishing Bank guarantee which factually denied the appellants opportunity of effective defence. Learned counsel further canvassed that attachment of amount received from Switzerland or its adjustment by the plaintiff-Bank was contrary to law especially when sender had changed name of beneficiary.
9. ' Mr. Abdus Samad Dogar learned counsel for plaintiff-Bank vehemently opposing the appeal argued that objection concerning want of pecuniary jurisdiction was never raised before-the trial Court, therefore, same cannot be allowed at this belated stage. He contended that amount was remitted in the name of appellant No,2 (Malik Mir Hassan), therefore, .Respondent-Bank had full authority on the basis of documents and law to adjust the same against his liabilities. Learned counsel stressed that till adjustment of amount change of beneficiary was not communicated to Quetta Branch. Thus subsequent alteration of beneficiary has no legal sanction. According to him proceedings were properly drawn by trial Court and judgment and decree did not suffer from any defect or infirmity.
10. ' The first question requiring consideration would be whether on the promulgation of Act XVII of 1992, learned trial Court lost the jurisdiction for deciding present case. Perusal of section 2(0 of Banking Companies (Recovery of Loans) Ordinance, 1979 shows that Special Courts for deciding the matters relating to recovery of loans for amount exceeding one million, were constituted. There is no doubt that till amended enactment trial Court had jurisdiction to deal with claim in suit because proceedings were initiated in the year 1990. Direction for allowing defence subject to furnishing of Bank-guarantee was made vide order dated 5-7-1992 when even according to appellant, Court had jurisdiction in the matter. It is an admitted feature that requisite surety has not been furnished by the appellants. The Banking Companies (Recovery of Loans) (Amendment) Act, 1992 was promulgated on 1-8-1992 whereby jurisdiction of Special Banking Courts was changed from "One Million" to "Ten Million". The amendment is reproduced below for ready reference:--- " 1 . Short title and commencement.--(1) This Act may be called the Banking Companies (Recovery of Loans) (Amendment) Act, 1992.
(2) It shall come into force at once.
2. Amendment of section 2, Ordinance XIX of 1979.---In the Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979), hereinafter referred to as the said Ordinance, in section 2, in clause (1), for the words "One Million" the words "Ten Million" shall be substituted.
3. Amendment of section 8, Ordinance (XIX of 1979).---In the said Ordinance, in section 8 for subsection (3) the following shall be substituted, namely:
(3) The special Court shall at the same time at which it passes a decree, order execution of the decree as arrears of land revenue or in such other manner as it may, at the request of decree- holder consider appropriate' ."
11. 'Referring to observation in case Habib Bank iv. Aulia Engineering 1993 CLC 154) Mr. Basharatullah, Advocate canvassed that trial Court had no jurisdiction subsequent to the promulgation of Act XVII of 1992 and plaint was liable to be returned. He has also specifically referred to judgments which were relied in above-quoted report. The main point requiring thorough scrutiny would be whether change of pecuniary jurisdiction which was never pressed by the parties has invalidated the whole proceedings. It is matter of record that appellants never raised objection regarding jurisdiction during pendency of case before trial Court. Even no such ground was agitated in the memo. Of appeal filed on 19-12-1992. For the first time this legal position was put forth through an Application No,376/1993 filed in this Court on 3rd May, 1993. The parties till then appear to be completely unaware about amending provision of law. Besides nothing has been alleged to show any prejudice caused to appellants in deciding the case for want of jurisdiction. Memo. Of appeal discloses that merely procedural defects or improprieties of impugned judgment have been highlighted. Undisputedly at the inception of proceedings Special Banking Court had competently taken cognizance of the matter. Only pecuniary jurisdiction for entertaining loan cases has been increased from "One Million" to "Ten Million" by Act XVII of 1992.
12. ' Therefore, it would be necessary to examine legislative intent for dealing with pending proceedings. Maxwell on the Interpretation of Statute dealing with pending action, P.221, Tenth Edition has expressed that in general when law is altered during the pendency of proceedings, the rights of parties are decided according to law as existing claim had begun unless new statute shows clear intention to vary such right. The principle in that behalf has been elucidated by Honourable Supreme Court in case The State v. Maulvi Muhammad Jamil and others (PLD 1965 Supreme Court 681). Relevant observations at pages 685 and 687 are reproduced:-- "Page 685: ' The general principle is that when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action 'was begun unless the new statute shows a clear intention to vary such rights (vide Maxwell, p.212). Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt, that it must be so construed even though the consequences may entail hardship to a party. But, even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, says Maxwell at p.217 of this Book, the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view.
13. ' The same principle is affirmed by Crawford in his Book on "Statutory Construction," at page 568 of the 1940 Edition. It is added, however, that in numerous instances the right and the procedure connected with it, may be so closely related, that the alteration or abrogation of the latter would operate to impair or destroy the former. The learned author further expresses the opinion that laws of a retroactive nature, affecting the rights of individuals, would be upheld, if the change is according to equitable principles and highly promotive of the general good.
14. ' Page 687: ' This is followed by another quotation from another case to the effect that a statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words, if a statute deals merely with the procedure in an action, and does not affect the, rights of the parties, it will be held to apply prima facie to all actions pending as well as future. It is only if it be more than a mere matter of procedure, that is, if it touches a right in existence at the passing of the new Act, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act.
15. ' Corpus Juris, Vol. 59 at p.1174, enunciates the principle in similar terms."
16. ' Similarly legal effect of amending the Ordinance which does not specifically provide retroactive action has also been considered in the following judgments:--
(i) Hassan and others v. Fancy Foundation (PLD 1975 SC 1): "Dealing with the first limb of the arguments of the appellant's learned counsel, it is not controverted that the two amendments to section 13 of the principal Ordinance set out above, are matters of substantive law as distinguished from mere procedural matters. And it is well- established principle, that in general when substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. On this proposition, the law is succinctly stated in Maxwell on the Interpretation of Statutes, 12th Edn. At p.215 in the following words:--- ' Upon the presumption that the Legislature does not intend that is unjust rests the learning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended... ....
(ii) Mushtaq Ahmad v. District Manager, Government Transport Service etc. (1982 SCM R 965): "2. It was submitted that section 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as it originally stood, only provided that no order of dismissal shall be made until he has been informed of the alleged misconduct and is equally free to explain the circumstances alleged against him. The words "within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employers were introduced by an amendment made by Act XI of 1976. Since in the present case the Notice was not served within one month, no action could have been taken against the petitioner. There is nothing to show that this amendment was retrospective in operation and since in the present case the misconduct took place on the 1st of March, 1975 that is to say, long before the 23rd December, 1975 when the amendment was made, it cannot be said to be operative so as to affect the cases relating to period before the amendment was brought into force. We have no reason to differ with the High Court on this point."
17. ' What actually needs to be ascertained would be whether through introduction of Act XVII of 1992 legislature wanted to give retrospective effect by changing course of adjudication even in respect of pending proceedings. Bare perusal of amending law discloses that merely to lessen the burden of High Courts trying bank loan cases pecuniary jurisdiction was enhanced. Therefore, new institution before banking tribunal would relate to loan matters having subject-matter beyond "Ten Million". Nothing is indicative about jurisdiction of cases where proceedings had already commenced. Obviously till the promulgation of amended enactment Special Banking Tribunal was competent to try cases. The only change which had taken place pertains to subject-matter whereby instead of "One Million" pecuniary jurisdiction has been increased to "Ten Million". It is pertinent to note that after promulgation of amending enactment at the most District Judge became competent -to examine bank loan cases up to Ten Million. However, whether dispute is decided by District Judge or High Court as Special Banking Tribunal the, appeal lay before Division Bench of the High Court. Thus no prejudice is apparently caused to a party when proceedings were drawn before better or higher forum. Learned counsel for appellants relying on the observation in cases (i) Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) and (ii) Bashir v. Wazir Ali (1987 SCM R 978) has stressed that provision should be deemed retrospective thus vitiating whole proceedings culminating in impugned judgment. From the above discussion, said contention is not tenable.
18. ' Now, considering other aspects, even if amending Act. XVII of 1992 is deemed retrospective, we have not been able to pursuade ourselves to associate with conclusions of learned Single Bench of Lahore High Court in Habib Bank Ltd. v. Messrs Aulia Engineering and others (1993 CLC 154) relied on behalf of appellants. The amendment came on 1-9-1992 therefore, with all respects we feel that proceedings drawn by Special Banking Tribunal till then were certainly lawful and valid as such could not be brushed aside or wiped out because forum from that point of time onwards had changed. Even if element of retrospectivity was assigned, the matter at best could be referred to Courts specified under amending law for finalizing it from the stage when new law was promulgated. Accordingly for the foregoing discussion with great humility we are inclined to dissent from the decision of learned Single Bench of the Lahore High Court reported as 1993 CLC 154.
19. ' Additionally it may be seen that change of pecuniary jurisdiction practically does not affect the validity of proceedings which have been concluded without' challenge from either side specially when no prejudice is alleged. It would be profitable to refer here the observation of Full Bench in case Mr. Urehan Kuer v. Mt. Kabutri (AIR 1934 Patna 204):-- "The tribunal should be given an opportunity of dealing with this matter of jurisdiction at the earliest moment in order that it might not waste time by going into the merits and the enactment shows that this is the policy of the legislature. Section 11, Suits Valuation Act, enacts that an objection by reason of over or under valuation shall not be entertained by an appellate Court unless the objection is taken in the Court of first instance at or before the hearing at which issues were first framed and recorded or in the lower appellate Court in the memorandum of appeal to that Court or the appellate Court is satisfied for reasons to be recorded by it in writing that the suit or appeal was overvalued or under-valued or that the over-valuation or under-valuation therefore has prejudicially affected the disposal of the suit or appeal on its merits. As was stated in the case of Khudaijat-ul-Kubra v. Amina Khatun AIR 1924 All. 388 = 80 IC 413 = 46 All. 250 at page 253 (of 46 All. p.250):-- ' It is clearly contemplated there (i,e, in the statute) that any objection which is to be raised on the ground of pecuniary jurisdiction must be taken in the trial Court at the earliest possible opportunity and where the objection is not taken it is not to be entertainable thereafter unless the appellate Court is satisfied that there has been some miscarriage of justice on the merits' ."
20. ' Adverting to next question it may be seen that trial Court had jurisdiction to impose condition for granting permission to defend. In the instant case appellants through various applications filed for seeking permission of defence do not even obliquely deny the opening of account with respondent-Bank, execution of documents or obtaining of overdraft facilities. The validity of claim in suit has been challenged merely on the grounds of excessiveness in levying interest and limitation. It may be seen that apart from execution of documents in the shape, (i) D.P. Note, (ii)
21. Letter of arrangement, (iii) Letter of continuity, (iv) Deed of hypothecation, (v) Letter of undertaking etc. Only equitable mortgage of immovable property located in Garden East Karachi had been drawn for securing huge amount of over-draft availed by appellants from time to time, which with passage of time and accumulation of interest had enormously increased. Therefore, in the peculiar circumstances we do not find any serious defect or illegality in the order dated 5-7-1992 directing appellants to furnish Bank guarantee. Such decision was certainly within the competence of trial Court and in conformity with requirements of law. Thus requisite surety was to be furnished before 5-8-1992 which appellants failed. To comply with. Accordingly irrespective of subsequent change of pecuniary jurisdiction appellants were not absolved from obligation of furnishing requisite surety within stipulated time 'Appellants, therefore, cannot take advantage of their failure on the pretext of change in the pecuniary jurisdiction of Court of which admittedly he had no knowledge. The consequences for non-compliance therefore had to follow, wherever case may be tried.
22. ' Lastly it may be seen that Fax message from Bank of Liechtenstein for transferring the amount in favour of beneficiary Malik Mir Hassan was sent on 6-7-1991. Branch of respondent-Bank at Quetta had kept said amount under lien and adjusted the same towards the liability of Malik Mir Hassan on 22-7-1991 by forwarding the balance amount in the specified account of beneficiary Malik Mir Hassan maintained with Grindlays Bank, Quetta. It appears that change in the name of beneficiary was communicated by the Bank of Liechtenstein towards 22-7-1991 but receipt of such message was verified by concerned Branch of Habib Bank at Karachi on 25-7-1991. Admittedly three days prior to such verification the adjustment of amount had already been made as such any subsequent intimation about change of beneficiary had no legal consequence. Factually on adjustment of the amount by respondent-Bank on 22-7-1991 practically the claim in suit stood satisfied. However, subsequently Bank had also sought attachment of the amount as a measure of abundant pre-caution. As already discussed trial Court despite amendment of law continued enjoying, jurisdiction for adjudicating upon the pending dispute. Therefore, in our opinion subsequent proceedings relating to attachment etc. Drawn by trial Court did not suffer from any impropriety which may warrant interference. It may further be seen that appellants had not disputed obtaining of overdraft facility but had challenged the claim on . The basis of excessiveness of interest. There is nothing brought on record which may suggest that higher rate of interest has been calculated or demanded from the appellants. Learned counsel for appellants had also stressed hard in explaining certain irregularities about impleadment of appellants Nos.2 to 5 and passing of ex parte decree against them. Suffice it to observe that recovery having been affected from the main partner appellant No,2 the decree against appellants Nos.3 to 6 even otherwise has become ineffective and is not required to be executed, therefore, objections about validity of proceedings to the extent of said appellants need not be discussed.
23. ' From the above reasons we are inclined to conclude that nothing substantial has been brought forth which may affect validity of impugned judgment and decree warranting interference therein.
24. ' Thus appeal is dismissed. However, parties are left to bear their own costs.